Texas Faith-Based Bill Will Be Headache for State to Enforce

This week, Texas Gov. Greg Abbott (R) handed a legislative victory to faith-based entities that want to get child welfare contracts but not do anything they find objectionable on religious grounds. He also handed, in our humble opinion, a perpetual management migraine to his own Department of Family Preservation Services.

But if we’re correctly understanding the bill’s bizarre attempt to protect kids from…the bill itself, we guess?… Youth Services Insider sees the potential for constant refereeing by DFPS as a contractor. Allow us to explain.

Let’s start with the fact that the only people these organizations can discriminate against are foster and adoptive parents. The bill will empower an organization tapped to recruit or train those parents to only choose straight couples, or couples of a particular religion, etc.

But for those organizations serving birth parents or children, there is no way for them to decline to serve them because they aren’t allowed to ask them about sexuality, religious beliefs, etc. We confirmed this in e-mails with DFPS spokesman Patrick Crimmins:

YSI: Is there any way a faith-based provider could be certain of the religious or sexual identity of a youth referred to it by Texas DFPS, or a birth parent referred for services? Because if the answer is no, there really is no way a faith-based provider could be certain of the type of things it might choose to be discriminatory of.

Crimmins: I believe that is a good point.

So this bill does not permit faith-based groups from passing on serving kids or parents if the Texas child welfare system decides to refer them their way. This means that very likely youth in Texas’ child welfare system will be referred to programs, foster homes and congregate settings operated by faith-based groups that disapprove of their orientation, identity, lifestyle or religious beliefs.

And this is where the rubber meets the road, because these organizations now have broad ability to limit the services available to those kids. They can absolutely put a gay foster youth in a religious education program, and decline to refer him to, say, an LGBT peer group.

DFPS might not be able to infringe on a faith-based contractor’s ability to put a child in religious education, but we wouldn’t be surprised to see some of those kids legally challenge it. Meanwhile, the bill’s protection for youth requires that in the event someone seeks services a faith-based group won’t provide, the government must make a referral in the general vicinity.

DFPS will have its hands full making sure the protections in this bill are lived up to. And if they are not – if sexually active teens are not given say in medical decisions, if LGBT youth aren’t provided appropriate counseling or peer opportunities – there is no doubt the agency will see legal challenges.

YSI asked Crimmins what the agency’s plan is for implementing and enforcing the law.

“We don’t even have a bill implementation plan yet for this one, so I have no idea,” Crimmins said. The law does not take effect until September 1.

Meanwhile, DFPS will also be working on the the many problems that landed the state under a consent decree stemming from a class-action lawsuit brought by Children’s Rights, a nonprofit organization that pursues child welfare reform through litigation, which specifically challenged the state’s treatment of youth classified by DFPS as Permanent Management Conservatorship (PMC).

In 2015, Judge Janis Jack ruled in favor of Children’s Rights, stating:

“Texas’s foster care system is broken, and it has been that way for decades. It is broken for all stakeholders, including DFPS employees who are tasked with impossible workloads. Most importantly, though, it is broken for Texas’s PMC children, who almost uniformly leave State custody more damaged than when they entered.”

We have an idea for DFPS and Gov. Abbot that might not even require legislation: Establish DFPS policy that grants youth the reciprocal right to decline services rendered by faith-based contractors. Let any youth involved in the child welfare system, without fear of “adverse action,” discriminate against those contractors.

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John Kelly, Editor in Chief, The Chronicle of Social Change
About John Kelly, Editor in Chief, The Chronicle of Social Change 1206 Articles
John Kelly is editor-in-chief of The Chronicle of Social Change. Reach him at jkelly@chronicleofsocialchange.org.